Stewiacke Home Hardware Building Center v. Leighton, (2012) 316 N.S.R.(2d) 315 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 10, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 316 N.S.R.(2d) 315 (SC);2012 NSSC 184

Stewiacke Home Hardware v. Leighton (2012), 316 N.S.R.(2d) 315 (SC);

    1002 A.P.R. 315

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MY.028

Susan Leighton (applicant) v. Stewiacke Home Hardware Building Center (respondent)

(Hfx. No. 364719A; 2012 NSSC 184)

Indexed As: Stewiacke Home Hardware Building Center v. Leighton

Nova Scotia Supreme Court

Rosinski, J.

May 9, 2012.

Summary:

A retailer claimed against Leighton for non-payment. Leighton retained counsel who contacted the retailer and received an assurance that it would not make an application for quick judgment. Leighton did not file a defence. A trial date was set. Neither Leighton nor her counsel appeared. The retailer was granted judgment on August 8. Leighton requested a reconsideration under s. 23(2) of the Small Claims Court Act. A hearing was held on October 18. The adjudicator dismissed the application for reconsideration, finding that there was no reasonable excuse for the failure to file a defence and to appear at the August 8 trial. Leighton appealed under s. 32(1).

The Nova Scotia Supreme Court allowed the appeal, ordering a rehearing of the August 8 hearing before a different adjudicator.

Courts - Topic 6204

Provincial courts - Nova Scotia - Small Claims Court - Appeals - [See Courts - Topic 6218 ].

Courts - Topic 6204

Provincial courts - Nova Scotia - Small Claims Court - Appeals - A retailer claimed against Leighton for non-payment - Leighton retained counsel who contacted the retailer and received an assurance that it would not seek a "default judgment" by way of an application for quick judgment - Leighton did not file a defence - A trial date was set - Neither Leighton nor her counsel appeared - The retailer was granted judgment on August 8 - Leighton requested a reconsideration under s. 23(2) of the Small Claims Court Act - A hearing was held on October 18 - Leighton's counsel explained her own absence (inadvertence) and Leighton's (illness) and provided a doctor's note - The adjudicator dismissed the application for reconsideration, finding that there was no reasonable excuse for the failure to file a defence and to appear at the August 8 trial - Leighton appealed under s. 32(1) - The Nova Scotia Supreme Court allowed the appeal, ordering a rehearing of the August 8 hearing before a different adjudicator - Having found that the adjudicator lacked jurisdiction under s. 23 on October 18, the court indicated that, even if s. 23 had been applicable, there was a breach of natural justice on October 18 - Given that Leighton's counsel appeared before the adjudicator and gave evidence that she had misdiarized the August 8 hearing date and Leighton, herself, had been extremely ill, it was unfair for the adjudicator to have proceeded to a finding that "no evidence was introduced in support of the grounds" to set aside the August 8 judgment - See paragraphs 83 to 85.

Courts - Topic 6209

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Adjudicator (incl. time for decision) - [See Courts - Topic 6218 ].

Courts - Topic 6210

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Natural justice - [See second Courts - Topic 6204 ].

Courts - Topic 6218

Provincial courts - Nova Scotia - Small Claims Court - Quick judgment where defence not filed - A retailer claimed against Leighton for non-payment - Leighton retained counsel who contacted the retailer and received an assurance that it would not make an application for quick judgment - Leighton did not file a defence - A trial date was set - Neither Leighton nor her counsel appeared - The retailer was granted judgment on August 8 - Leighton requested a reconsideration under s. 23(2) of the Small Claims Court Act - A hearing was held on October 18 - The adjudicator dismissed the application for reconsideration - Leighton appealed under s. 32(1) - The Nova Scotia Supreme Court allowed the appeal, ordering a rehearing of the August 8 hearing before a different adjudicator - Section 23 did not apply here as the retailer did not make an application for quick judgment - Section 23(1) applied only where no defence was filed and no hearing was held - Here, the retailer appeared on August 8 and gave evidence - Leighton's application under s. 23(2) was improperly made - The adjudicator erred in purporting to act under s. 23(2) on October 18 - The adjudicator had jurisdiction to proceed on August 8, but, having done so, he had no authority under s. 23 to reconsider the order - Leighton's appeal, if any, should have been from the August 8 order - The fact that neither party recognized this did not confer jurisdiction on October 18 - Nor could the parties attorn to jurisdiction where no potential jurisdiction existed - Whether seen as an error of jurisdiction (regarding October 18) or an error of law (regarding August 8 and October 18), the correctness standard applied to both and the adjudicator erred in either scenario - See paragraphs 31 to 82.

Practice - Topic 9759

Small claims - Appeals - New trials - [See second Courts - Topic 6204 and Courts - Topic 6218 ].

Practice - Topic 9762.1

Small claims - Appeals - Scope of review - [See Courts - Topic 6218 ].

Practice - Topic 9762.2

Small claims - Appeals - Procedure (incl. leave to appeal) - [See Courts - Topic 6218 ].

Cases Noticed:

Mor-Town Developments Ltd. v. MacDonald (2012), 316 N.S.R.(2d) 183; 1002 A.P.R. 183; 2012 NSCA 35, refd to. [para. 13].

Mitchell (George L.) Electrical v. Rouvalis, [2010] N.S.R.(2d) Uned. 159; 2010 NSSC 203, refd to. [para. 15].

R. v. Phinney (1979), 33 N.S.R.(2d) 266; 57 A.P.R. 266 (C.A.), refd to. [para. 15].

Crombie Developments Ltd. v. Sachdeva (2008), 270 N.S.R.(2d) 20; 865 A.P.R. 20; 2008 NSSM 32, refd to. [para. 17].

Atton v. Malloy et al. (2004), 225 N.S.R.(2d) 201; 713 A.P.R. 201; 2004 NSSC 110, refd to. [para. 17].

Sutherland v. Lacombe et al. (2008), 273 N.S.R.(2d) 70; 872 A.P.R. 70; 2008 NSSC 391, refd to. [para. 18].

Ocean v. Economical Mutual (2009), 281 N.S.R.(2d) 201; 893 A.P.R. 201; 2009 NSCA 81, refd to. [para. 23].

Temple v. Riley (2001), 191 N.S.R.(2d) 87; 596 A.P.R. 87; 2001 NSCA 36, refd to. [para. 27].

R. v. Waters (W.T.) (1992), 117 N.S.R.(2d) 191; 324 A.P.R. 191 (C.A.), refd to. [para. 27].

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 45].

Surrette Battery Co. v. McNutt et al. (2003), 211 N.S.R.(2d) 294; 662 A.P.R. 294; 2003 NSSC 6, refd to. [para. 45].

Consumer Impact Marketing Ltd. v. Rzepus, [2003] N.S.R.(2d) Uned. 153; 2003 NSSM 9, refd to. [para. 49].

Clarke v. Collier (P.F.) & Sons Ltd. (1993), 129 N.S.R.(2d) 113; 362 A.P.R. 113 (S.C.), refd to. [para. 54].

Ross v. Elliott, [2011] N.S.R.(2d) Uned. 166; 2011 NSSC 298, refd to. [para. 64].

Potter v. Burrell (1989), 90 N.S.R.(2d) 390; 230 A.P.R. 390 (S.C.), refd to. [para. 66].

Waterbury Newton v. Lantz et al. (2010), 297 N.S.R.(2d) 222; 943 A.P.R. 222 (S.C.), refd to. [para. 67].

Bennett v. Spencer (2009), 284 N.S.R.(2d) 386; 901 A.P.R. 386; 2009 NSSC 368, refd to. [para. 84].

R. v. Whincup (W.) (2012), 314 B.C.A.C. 75; 534 W.A.C. 75; 2011 BCCA 520, refd to. [para. 84].

Moody Brothers Groceteria v. Benjamin (1982), 54 N.S.R.(2d) 423; 112 A.P.R. 423 (Co. Ct.), refd to. [para. 85].

Beals v. Saldanha et al. (2003), 314 N.R. 209; 182 O.A.C. 201; 2003 SCC 72, refd to. [para. 86].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 23 [para. 31].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 370, 371 [para. 41].

Counsel:

Stacey Gerrard, for the applicant;

Dave MacDonald, for the respondent.

This appeal was heard on April 10, 2012, at Halifax, N.S., by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 9, 2012.